The dangers of “transformative constitutionalism”

Martin van Staden writes on the doctrine the CHE wants enforced at law school

Council threatens academic freedom with “transformative constitutionalism”

The Council on Higher Education (CHE) has completed its investigation into and report on the state of the Bachelor of Laws (LL.B.) degree at South African universities. It makes valid points throughout on matters such as a lack of teaching critical thinking skills, but hidden in its hundred pages is a concerning potential threat to academic freedom. The CHE wants students and faculty at universities to “internalise” so-called “transformative constitutionalism” into their curricula, their teaching, and their “socialisation activities”. This is because transformative constitutionalism, the CHE asserts, is a “foundational principle in modern South African jurisprudence”. The CHE wants a “detailed plan” from all law faculties on how they will achieve this.

This is far from the only problem in the CHE report. The report also makes recommendations for the “decolonisation” and “Africanisation” of law curricula – a nebulous idea that could prove disastrous unless it is kept within elective courses, or reduced to a far more specific form. The report also calls into question the extent to which there is racial demographic representivity among university faculty and students, in the name of “social sensitivity”. The CHE requires all law faculties to use “all means at their disposal” to improve their “racial diversity”.

Clearly, the only real diversity that is non-arbitrary, that is, diversity of ideas, is rejected, in favour of ideological conformity to the notion of transformative constitutionalism, while the irrelevant diversity of race is placed front and centre.

In the South African context, the notion of transformative constitutionalism was first introduced by the American legal academic, Karl Klare, in a 1998 articlein the South African Journal on Human Rights. He defines it as “a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction”. This includes enforcement of these egalitarian values within the private sector: The workplace and the family.

Transformative constitutionalism is the basis for such controversial Constitutional Court decisions as Agri SA v Minister for Minerals and Energy, in which the court endorsed the expropriation without compensation of privately-owned minerals; SAPS v Barnard, where the court decided that affirmative action on racial grounds is a legitimate measure to achieve equality; and the truly bizarre AfriForum v UFS case, wherein Chief Justice Mogoeng said that retaining Afrikaans as a major medium of instruction at the University of the Free State (UFS) is not “reasonably practicable” (the constitutional standard) because such retention “poisons” race relations.

To place this latter case in its proper jurisprudential context, the Constitution says in section 29(2) that everyone has the right to receive education in a language of their choice if it is reasonably practicable for the institution to do so. UFS had had Afrikaans as a medium of instruction since its founding, had a major component of its student body being Afrikaans speakers, and probably had available faculty or could easily acquire faculty willing and able to teach in Afrikaans. By every reasonable textual interpretation of this provision of the Constitution, it was and is reasonably practicable for UFS to retain Afrikaans as a major medium of instruction.

The Chief Justice, instead, decided to read something into the Constitution which had not previously been there. One of the implications of transformative constitutionalism, evident here, is the idea that the law is not and, according to Klare, “cannot be neutral with respect to the distribution of social and economic power”. In other words, the transformative constitutionalist in Mogoeng and the Constitutional Court bench did not interpret the Constitution textually – i.e., respecting the actual words and values specified in the text of the Constitution – but through the lens of social justice. In their minds, South Africa’s history, with Afrikaans as the predominant language being forced on unwilling participants, meant that there needed to be a “redistribution” of “social power” away from Afrikaans speakers at UFS.

Transformative constitutionalism is also the basis for why repulsive individuals like Penny Sparrow and Vicki Momberg get impoverished and imprisoned by court orders for uttering hateful words that do not amount to incitement to cause harm, yet people like Andile Mngxitama and Julius Malema, who have explicitly and implicitly called for criminal violence, often on the basis of race, get nothing more than a slap on the wrist. Transformative constitutionalism wants judges to factor in the reality that Sparrow and Momberg are white and Mxgxitama and Malema are black, because it is ostensibly relevant to the “context” in which they uttered their words.

This is to say that transformative constitutionalism is not a run-of-the-mill theory of jurisprudence, but is an ideology with significant implications for the political, social, and economic spheres in South Africa. It is an ideology with specific, substantive content, and this content happens to be situated neatly on the left of the political spectrum. Transformative constitutionalism is inherently anti- market, anti-privacy, and, in many circumstances, anti-free expression.

And this is fair enough. A healthy constitutional discourse requires a multiplicity of ideological and theoretical points of view to be put forward, debated, tried, and tested; as is done in the United States with the theories of living constitutionalism and originalism, among others.

The problem is that the CHE is attempting to artificially declare transformative constitutionalism to be the winner of the battle of ideas, and force law faculty and students to toe its ideological line.

Klare himself says that his theory is not “the only possible reading of the Constitution”, but one that “is at least plausible”. How, then, can the CHE seek to enforce a singular theory upon South African law faculties when the progenitor of the theory himself acknowledges that there are or could be other legitimate theories? Going further than mere teaching and curricula, the CHE wants students and faculty to internalise transformative constitutionalism into their “attitudes” and “mind-sets” as well.

Academic freedom means staff, faculty, and students, whether under- or post-graduate, are allowed to come to their own conclusions after being presented with a wide variety of alternative points of view. This was already neglected during my stint at law school between 2013 and 2016, when transformative constitutionalism dominated the course on legal philosophy. The liberal school of jurisprudence was neglected to the extent that John Locke – the father of constitutionalism – was mentioned as an aside in only one, short, paper. Steve Biko, Karl Marx, Karl Klare, and avowedly-socialistic legal academics received the lion’s share of attention. Now the CHE seeks to formalise this unacceptable state of affairs.

By forcing universities’ legal communities to “internalise” one theory of law into their “attitudes”, “mind-sets” and “socialisation activities”, the CHE is not only undermining academic freedom. These professors and students are our future judges, advocates, presidents and parliamentarians, after all. By enforcing this one theoretical perspective on the Constitution, the CHE is laying the foundation for a State ideology, not too far removed from communism in the erstwhile Soviet Union, or Apartheid in the years before 1994 in South Africa.

Martin van Staden is author of The Constitution and the Rule of Law (2019) and is pursuing a Master of Laws degree at the University of Pretoria. For more, see www.martinvanstaden.com.